Standing Committee A

[Mr. David Amess in the Chair]

Railways Bill

Schedule 1 - Transfer etc. of functions of the Strategic Rail Authority

Question proposed [this day], That this schedule be the First schedule to the Bill. 
Question again proposed.

Christopher Chope: Before we adjourned, the Minister told us that there would be quite a saving in staff numbers, and he kindly drew our attention to the briefing note on the Bill, which was made available earlier today. I have been looking in detail at page 12, which sets out the six units involved in DFT rail, although I do not know why it is not simply called Df rail. Unfortunately, it does not link them to schedule 1.
It would be extremely helpful if the Minister could set out in writing—I am not asking him to do this in a detailed oral response this afternoon—how the different paragraphs of schedule 1 will link in with the new structure, where the staff savings will arise and where staff will be redeployed. That would give us a much better feel for how the new structures will work. 
The group structure proposed in annex A shows that the six directors, heads of procurement and so on will report directly to the director general rail, but it does not deal with the functions that will be transferred as a result of schedule 1 or with the savings that will be made when functions are removed altogether from the Department's ambit. 
I hope that the Minister, in the spirit of good will, will be a little more forthcoming on the issue. One of the watchwords of Conservative Members is accountability, and we think that it is important for Ministers to be as open and accountable as possible with Committees that are scrutinising Bills such as this.

Tony McNulty: I am all for accountability and due scrutiny, and many of the hon. Gentleman's points are entirely fair and reasonable. They go to the heart of what I said earlier about the Bill unleashing our ability to carry out a process. Page 12 starts that process and is, in part, the mirror image of schedule 1.
If powers and functions are to be transferred, they must be transferred to something. That something is DFT rail, in the case of the Department. It is called DFT rail because the separate entity is the Department for Transport rail division, not the Department for  rail. Having presented the Bill to the House, we set out at the earliest opportunity the high-level organisation of that unit within the Department. 
As I said on Second Reading—and I am happy to say again—I will be more than happy to keep hon. Members informed if I have more to say about the DFT rail unit during this part of the parliamentary process or subsequently. However, at this stage, I cannot say what the end beast will look like, because we are in the early stages of abolishing the Strategic Rail Authority. That is a transitional process, and it will not simply happen at the flick of a switch. We are also dealing with more than 500 people—be they from DFT rail as it is now or the SRA—their individual circumstances and how they will fit or not fit into new positions within the new beast. As the hon. Gentleman will appreciate, that is a long, drawn-out process, but as and when I can do so, I will be more than happy to report back to the Committee and keep it informed of that and the other non-legislative elements that flow from what we seek to do through legislation. I hope that that is helpful.

Greg Knight: My hon. Friend the Member for Christchurch (Mr. Chope) referred to the statement that the Minister kindly made available to the Committee and that was placed on the Table this morning. Could the Minister tell us what is the status of that document? It almost appears to be a statement of policy. The preamble to the document refers to the fact that it is available to members of the Committee. If the document is a statement of policy in all but name, should it not be made available to the whole House, perhaps by the Minister issuing it as a written statement so that it is printed in Hansard?

Tony McNulty: I take the point, but I do not think so—not least because, for want of a better phrase, it is a position statement that emanates from the original parliamentary statement made in July. We felt it important to let the House, as well as staff in the SRA and the DFT, know what is going on through some of the non-legislative transitional elements as well as through the Bill. We do not want people to run away with the notion that either nothing will happen in terms of implementing the White Paper until the Bill is secured, or a whole host of things are to happen of which they have no knowledge, regardless of the passage of the Bill through the House. We are trying to keep a balance between the two.
I said on Second Reading that I am more than happy to make this and subsequent update or position papers on the non-legislative side available to members of the Committee and to the House through the Library. I think that that is an entirely fair point.

John Thurso: May I ask the Minister for clarification regarding annex A? If he cannot answer now, he could give me an answer at a later stage. Among the directors of the various projects, who would have the primary responsibility for freight?

Tony McNulty: Again, that is a good question, and one that we are considering in some detail. Page 15 of the briefing note states:
 ''The Department is working with the industry and ORR to agree a basis for long-term access contracts on the network and to identify key freight routes.'' 
In the context of what is be transferred or otherwise from the SRA, much of the freight element of its work will come to the DFT rail unit for strategic reasons, and some will go to Network Rail for the operational set-up. 
As and when we firm up the proposals, I shall inform the Committee how we intend filling the little boxes in annex A, who will take what responsibilities, and who will fill the subsequent boxes beneath them. The weekend after the publication of the Bill and subsequent papers, we advertised for the director general of the entire unit. Beyond that, the hon. Gentleman and others will appreciate that we are still talking about what exactly is needed. 
The transfer of functions will affect the DFT in large measure and the Office of Rail Regulation and Network Rail to a lesser extent, and we have to decide what will be the best fit of existing staff and the positions represented by those little boxes. That will rightly be a fairly lengthy process. We are talking about people's livelihoods and jobs, and the process is better done with less haste and more concentration. The apportioning of freight in the high-level organogram in annex A is a good point. I shall get back to the hon. Gentleman and the Committee when we start filling in the boxes more generally than is apparent from the initial titles. 
The Committee has raised fair and reasonable points, but I am now ready to commend schedule 1 to the Committee. 
Question put and agreed to. 
Schedule 1 agreed to.

Schedule 2 - Transfer schemes

Question proposed, That this schedule be the second schedule to the Bill.

Greg Knight: I rise to ask the Minister a question. Schedule 2, as I am sure all members of the Committee will know, sets out the parameters that will apply to the transfer schemes. Why does the Minister deem paragraph 2 to be necessary?

Tony McNulty: Unless guided by some extra-temporal force that says otherwise, I shall point out that some elements of the SRA's assets, liabilities and contracts are specific to the relationship between the SRA and the Department for Transport, and include no third party. Clearly if the whole thrust of the schedule is about how the transfer scheme or schemes will relate to third-party arrangements with franchisees, contractors and everything else, it is important to get all that down in detail. There will, however, be residual elements that remain entirely a matter for the DFT and the SRA. We do not, in effect,  have to instil a transfer scheme to transfer back to ourselves what we transferred to the SRA and that was ours, because that dual relationship becomes a single relationship. It is important to write that into the Bill, because otherwise it might float around in the ether and be subject to some sort of legal action. For completeness, those elements in which no other party is involved and that were part of the DFT-SRA relationship but are now just a DFT matter also need to be swept up.
So I believe that paragraph 2 is included for completeness, but I am open to guidance and tutorage.

Christopher Chope: May I take the opportunity to ask the Minister about paragraph (10), which talks about compensation for third parties? Does he have in mind a rough estimate of the extent of a possible contingent liability as a result of third-party rights arising from the changes set out in the Bill? Obviously the compensation payments will be paid out of national taxes by the citizens of this country, and it would be interesting to know what levels of compensation the Government envisage are likely to have to be paid.

Tony McNulty: The very short answer is that it depends, in part, on any remaining potential liability, against which there should be no contingency, once the entire transition has been effected. The hon. Gentleman will know, because it arose on Second Reading, that we are not about to flick a switch and stop any number of the active and operative contracts and franchises in which the SRA is involved, as and when we finally close it down. A transitional period is clearly involved. There may well be some residual contingent liability, but we really need to wait and see, as we saw with the previous schedule, how many people we are talking about transferring into the new unit and what residual elements—not of the DFT-SRA relationships but of the relationship between the DFT, the SRA and the third parties—are left.
Clearly a huge body of work needs to be worked through. I do not apologise for not having all the answers at my fingertips now, given that that work, much of which is non-legislative, must be done. It will, as the hon. Gentleman suggests, need to be understood that there may be a contingent liability at the end, but given that most, if not all, the SRA's operative and franchise contracts will remain extant and run their course, we will have a far clearer picture once we start to unpick all the other assets and liabilities involved in the SRA. I am more than happy, as I said, to keep the Committee fully apprised of how things unfold.

David Wilshire: I agonised over paragraph 11 of schedule 2 for a moment or two. Paragraph 11(10) states that
''a reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form''. 
I am curious as to what the provision means about not being in legible form. Presumably, if information is recorded on computer or on disc, it is in legible form, because that is how it appears on the screen. If the provision refers to a document that is either on paper  or recorded on computer, those forms are legible and intelligible. What things are recorded otherwise than in legible form?

Tony McNulty: In short, I have no idea, but I am sure that I shall find out shortly.

David Wilshire: Keep talking for a minute.

Tony McNulty: That is the plan. The hon. Gentleman makes a fair point. I am pretty sure that this issue arose previously—I think that he was on the Committee—during the passage of the Planning and Compulsory Purchase Act 2004. I am sure that I shall receive divine guidance on the matter soon.

David Wilshire: The cavalry is coming.

Tony McNulty: Well, the cavalry had better hurry up.
To return to the point made by the hon. Member for Christchurch, schedule 2 provides for compensation for third parties, when certain provisions of the schedule prevent them from enjoying the interest or right to which they would otherwise be entitled as the result of a transfer scheme transferring SRA property rights and liabilities, and the scheme does not make provision for the interest or right to arise in future if corresponding circumstances arise. That is gobbledygook for saying that there will be some tail-end residual liabilities and contracts that need to be smoothed over and got out of the way. That does not mean going about it in any elephantine way that involves rolling over the contractees, but we need to understand the myriad liabilities and contracts that exist and to make provision for sweeping them up at the end of the process. 
Apparently, the term ''legible form'' means precisely transcripts of oral materials or electronic files. I am sure that that makes things all the clearer to the hon. Member for Spelthorne (Mr. Wilshire), and that he will be able to rest assured and sleep easy at night.

David Wilshire: I appreciate that the Minister's answer is not his fault, but it confirms my question rather than answering it. The schedule states that material must either be in legible form—and the Minister has now confirmed what that means—or recorded in some other way. My question was what would the other ways be.

Tony McNulty: I have, I think, misinformed the hon. Gentleman—not deliberately, in this instance, although I happily own up to doing other things deliberately. I think that if we translate roughly into English, in the reference to
''a legible and intelligible copy of information recorded otherwise than in legible form'' 
the word ''otherwise'' denotes electronic files and transcripts of electronic materials. I apologise for any confusion, but I am sure that it will not be the last time that I, if not the hon. Gentleman, get confused.

Mark Field: I want to follow up the point made by my hon. Friend the Member for Christchurch on paragraph 10 of the schedule, relating to compensation for third parties. All sorts of railway and London Underground projects have given rise to a grave concern that affects many London folk—the potential for third-party blight and, arising from that, the notion of compulsory purchase. Was the Strategic Rail Authority subject, with reference to the myriad contracts, to any compulsory purchase issues that might affect some of the compensation for third-party rights included in the paragraph?

Tony McNulty: Again, that is an entirely fair point, but without fully understanding the myriad that I described, I cannot give a definitive answer. I suspect that the answer is that there will not be any need for a compulsory purchase dimension to the scooping up of assets and liabilities. I cannot, as I said, give a definitive answer because I do not entirely understand the huge range of possibilities concerning the asset and liability base. However, given what the SRA's asset base would look like, it is hard to imagine a compulsory purchase order scooping up residual, third-party rights.
As I said, we are committed to providing reviews and reports from the front, although I cannot promise that they will be weekly. However, as we work through the transition that the Bill will allow us to make—clearly, the Bill itself will not bring that transition about, and many non-legislative issues will be equally important, if not more so—I will keep members of the Committee fully informed.

Greg Knight: My hon. Friend the Member for Spelthorne asked about paragraph (10), and I want to give the Minister an example to illustrate my hon. Friend's point. If I dictate something to my secretary and she writes it down in shorthand, that will be the original document, but, to me, it will not be legible. If I ask her to type it up, it will then be a legible and intelligible copy of information that was otherwise recorded.

David Wilshire: I am always eternally grateful to a lawyer who gives me free advice.

Greg Knight: The danger, of course, is that free advice is worth only what one pays for it.
The Minister said a moment ago that he did not apologise for not having all the information at his fingertips, and we do not criticise him for not having it at his fingertips. He fairly and properly said that, if he was unable to answer a point immediately, he would give the Committee an answer as soon as possible, and we are grateful to him for that. On that basis, we are broadly content with the way in which we are proceeding. 
We are also broadly content with the schedule. The Minister has answered some of our questions about it, and we shall not divide the Committee. 
Question put and agreed to. 
Schedule 2 agreed to.

Clause 2 - Transfer of safety functions to ORR

Question proposed, That the clause stand part of the Bill.

Christopher Chope: The clause gives me the opportunity to ask the Minister some more questions. Page 13 of his briefing note includes a section headed ''Office of Rail Regulation'', which is what the clause is all about. The briefing note states:
 ''No final decisions have yet been taken on the organisational arrangements to be made as and when the ORR takes over responsibility for the regulation of safety. It will be important that whatever arrangements are adopted ensure that safety regulation is seen to be independent and impartial. The ORR will consult on the new arrangements shortly.'' 
It seems that we are being asked to give a blank-cheque endorsement of this significant policy change, which has implications for the billion or so passengers who travel on the railways every year and who want to have a safe journey to their destination. 
All we have from the Government so far are the five lines of general intentions that I read out. What, however, will be the time scale for establishing the ORR and transferring to it responsibility for the regulation of safety? How will that fit in with the transfer of responsibilities for London Underground? Will that be done on a different time scale? What will be the implications of including London Underground among the responsibilities of the ORR? 
Furthermore, where will the savings come from? Many of us are familiar with anecdotal evidence from people who operate on the railways that a lot of unreasonable demands are made of them, under the various safety cases and the current legislative framework, with not enough emphasis on risk assessment and too much emphasis on breaches of technical requirements that may have no impact on the safety of people travelling on the railway. I would welcome a change in culture as a result of the Government's proposals, with more emphasis on risk assessment and less emphasis on dirigistic regulation. 
The Minister needs to explain more about how everything will work and where the savings will come from. All we have heard so far are general statements. For instance, he said that rail safety would be maintained at its present level or, where reasonably practical, continually improved, and that there was no question of delivering a lower safety level or of compromising the independence of the safety regulator. Fine words, but how will that be worked out in practice? 
How will we ensure that the prosecuting authority is independent? Perhaps I have misunderstood, but I gather that the Health and Safety Executive, which is under the control of the Health and Safety Commission, decides whether to prosecute for health and safety breaches, which are different from cases where there may be an accident. Where there has not been an accident but a breach of health and safety requirements that could result in significant concern or  damage to people who travel, who will take the responsibility for prosecuting and how will that decision be independent? 
For example, we know that the local authorities responsible for prosecuting health and safety offences do not prosecute the offences of which they themselves are, unfortunately all too often, guilty. Those prosecutions are handled by the Health and Safety Executive nationally, so I would be grateful if the Minister could explain how the proposals will operate in practice. 
There are a number of more detailed matters that we shall come on to later, but this debate gives us the opportunity to press the Government to restate or expand upon the justification for their approach, and to say where the savings will come from, how safety will be improved and how we will ensure that there are no conflicts of interest, with the Government wearing more than one hat.

Greg Knight: My hon. Friend has raised a number of important points and we look forward to the Minister's reply. Our initial view of the clause was that it was designed for management and efficiency reasons, not an indication that existing safety standards would be abandoned or lowered. However, I am concerned that the Minister's paper, which he says is not a statement of policy—I suppose we should call it the limbo paper—refers to clause 2 and says:
 ''It will also allow safety to be integrated more closely with other issues, such as costs''. 
That is a warning that part of the reason for the clause may be that safety is to be compromised. 
The Minister is aware that one cannot always get safety on the cheap. We are happy to support the clause if its aim is to obtain savings through more efficient management of safety issues, but if there is any suggestion that safety standards might be lowered, we would not wish to associate ourselves with it. I hope that the Minister will say that my concerns are unfounded and that the clause concerns improvements in the management of safety issues. We would be content with that response.

Graham Stringer: I concur with the right hon. Gentleman's argument about not cutting costs. However, does he accept the finding of the Select Committee report on the future of the railway that there is substantial evidence of inappropriate gold-plating in the railway system by the Health and Safety Executive? That kind of expenditure should go.

Greg Knight: I am grateful for that helpful intervention. I agree with what the Select Committee said. Indeed, some 12 months ago I was approached by a train operator who told me that the HSE had prevented one of his trains from running because a light bulb was not working in one of the carriages. A common-sense approach to safety is necessary, and there might well be occasions on which a light bulb in a particular carriage is not functioning, yet it is perfectly safe to travel in the train. Most of us would assume  that a train should not be stopped for that reason. There are savings to be made, and that is why I said in my opening remarks—I hope that the hon. Gentleman took note—that we support the saving of money by streamlining management efficiency, and we will support it provided the Minister can assure the Committee that it is no part of his policy to lower safety standards.

Tony McNulty: There is no agenda to lower standards. Safety is and remains paramount throughout the industry. Our goal here is, if anything, to embed safety more readily in other areas of industry regulation, such as the economic and other issues that concern the Office of Rail Regulation. I agree with my hon. Friend the Member for Manchester, Blackley (Mr. Stringer) and the hon. Member for Christchurch—one of whom described it as gold-plating and the other as dirigiste regulation—that matters such as those highlighted by the Select Committee are likely to be looked at more efficiently within the belly of the industry than otherwise.
On the points about the transfer, which this clause allows, we anticipate that anything to do with rail safety that currently sits with HSC will be transferred. It is in the nature of the Bill that this clause, and subsequent ones, are concerned with the manner of transition of functions from one body to another. That will not compromise safety in any way or diminish the functions of the committed professionals who work in the industry. Given all the lessons that have been learned, independent safety regulation sits far more readily with ORR than elsewhere. On one of the other points made by the hon. Gentleman, the tube and metros and other elements will transfer, and it will be for the ORR to prosecute. We intend to make regulations under the Health and Safety at Work, etc. Act 1974 that will make the ORR the authority responsible for enforcing and prosecuting breaches of safety legislation on the railways. 
Also, the limbo document, as it was called, that I introduced this morning—it merely updates the situation, and there are more to come—states clearly that there will be a memorandum of understanding between the HSC and the ORR on where rail safety starts and the wider, ongoing Health and Safety at Work, etc. Act 1974 concerns, for which the HSC will be responsible. The Secretary of State will also issue guidance on the general duties under the 1993 Act. 
The ORR will act as the independent safety regulator, and will assume responsibility for the prosecution of breaches under the 1974 Act. We believe that it is premature to move from legislation that states that the transfer should happen—again, rather like the SRA—and then simply flick a switch so that, all of a sudden, it happens. There needs to be extensive discussion between the HSC and the ORR to reach the stage where safety responsibilities can be transferred efficiently and effectively and within a time scale in which the focus on safety is maintained.
We are not making changes across the rail industry simply for the fun or it, nor do we want to reach the stage where much of the very good progress that has been made in the industry across all areas is somehow impeded during all these transfers and the abolition of the SRA. So, again, it will not be appropriate to rush at this and do it quickly: better that it was done over time and efficiently. If I had to hazard a guess, however, I would say that it will probably take the best part of next year to get to the stage where the ORR has full responsibility and everything has been transferred over so that the ORR's entire focus is on safety, organisation and management some time towards the end of next year. 
That is a guess. It may well be that the transfer of responsibilities is much smoother that I have indicated. I say, with no offence intended, that that is a conservative estimate. It is better that it is done properly and is not rushed. It is also better that the focus on safety—currently the HSE's responsibility, but eventually the ORR's—is maintained, but I do take the point made by the hon. Member for Christchurch about dirigiste regulations and the point made by my hon. Friend the Member for Manchester, Blackley about co-operation.

Christopher Chope: I am grateful for the Minister giving us some indication of the time scale. In his briefing note, he says:
 ''The ORR will consult on the new arrangements shortly.'' 
Is that consultation likely to be, for example, before Christmas and in sufficient time to inform the proceedings of the Committee or the Report stage?

Tony McNulty: I can probably say with some confidence that the consultation is unlikely to be held before Christmas. I can say with equal confidence that there will certainly be something to report before the end of the Bill's parliamentary passage, hopefully on Report, rather than during consideration of a Lord's amendment or at the tail end of the Report stage. Again, I will be more than happy to report back to the Committee as and when I have things to report, but I reemphasise that safety is and will remain paramount. We agree that the transfer will increase the industry's focus on safety, and that it is better that the responsibilities are transferred appropriately and properly the first time rather than rushed.

Graham Stringer: My hon. Friend will be aware that a criticism levelled by the rail industry at the HSE is that it classified the rail industry as a major hazard industry. Will he explain whether, as Minister, he will be responsible for keeping or changing that designation, or whether that will be transferred to Her Majesty's railway inspectorate? Does he intend to make a policy statement on whether that classification should be changed?

Tony McNulty: In the first instance I think that my hon. Friend is right. The transfer will happen as he suggests, and there will be a need—not necessarily as part of the Bill or even the transfer—for subsequent discussion and reflection. Perhaps then there should be a policy statement. I am told by those who want to  intervene on me from a divine, rather than a parliamentary, position, that I can certainly specify the first half of next year—which is roughly what I said anyway—in the context of the parliamentary timetable that we can all refer to in our heads. Ultimately, there will be a transfer of this matter, and the classification will be for the ORR or the rail safety element within it.

David Wilshire: I wanted to listen to the Minister before I commented or even decided whether I needed to comment. I am not against what is being suggested, but I am cautious about whether we are going to get things right. Safety is perhaps the most sensitive of all the issues that we must deal with. I set out not to be critical but to raise some reservations that I have.
The Minister rightly says that we need to take some time, and that six months may be needed. I worry whether even that will be long enough. To be an enthusiastic supporter of the change I need to get my mind round the idea that we shall obtain clear and substantial benefits. If ever there was a case of ''if it ain't broke, don't fix it,'' this is one. Rather than briefly passing over the matter and saying that it is self-evidently a good thing, perhaps we should wait for the consultations to be completed—wait for the six months that the Minister mentioned to expire—and, at some point, have an opportunity to revisit the entire issue. We could then assess whether the consultation, research and thinking that had been done had resulted in the devising of a good scheme. Without necessarily wanting to oppose the approach that is being taken I suggest that there may be a need to revisit the question. 
The other thing that concerns me in this debate—I touched on it briefly on Second Reading but we did not explore it—is that, as I understand the proposal, the ORR will set safety standards and then enforce them. I am always nervous when the setter of standards is also the enforcer. There is always the temptation, when an organisation is carrying out investigations into standards that it has set, that its representatives will work from the premise that the standards are not to be part of the investigation: the only question will be whether they have been met. The people doing the investigation and, ultimately, the enforcing, may take a view that the standards should have been set higher or differently, and that that contributed to whatever accident has happened; an independent enforcement body is more likely to take an objective view of the standards than the organisation that set them in the first place. 
I worry about that. I know that it has been suggested that we should adopt the approach in question because it was adopted in aviation. The Minister will know that no day will ever go by, while I am around, without Heathrow coming into a conversation of this sort—and a reference to the Civil Aviation Authority is, I hope you will agree, Mr. Amess, in order on this occasion. It has been pointed out that it is sensible for aviation safety issues to reside with the CAA rather than the Health and Safety Executive, and that that seems to work well. However, I am prepared to be worried about the way the CAA operates, for the very reasons that I have given: it is judge and jury in its own  court. The argument ''Well, it works well in aviation, so let's follow that route'' is not one of the clear benefits that will persuade me on this issue. There must be more to it. 
There is another aspect of the matter, which caused mirth when I tried to explain it in the Chamber. I said that I could see a clear distinction between aviation issues and railway issues. I wanted to say that things that take place in the sky are all aviation-connected as far as I can see—I have tried to think of exceptions to that. 
It is perfectly reasonable for one organisation to try to make an overall arrangement for what happens up there, but to what extent can the railways be segregated as a discrete system? The ORR is to be the only party looking at rail safety issues, but as one or two horrible road traffic accidents recently demonstrated, railway failures are not the only things that can cause such problems. Again, I do not know the extent to which consultation will take place, for example with the Highways Agency and the other organisations involved in traffic matters. 
If investigations are carried out, will they be confined to what happened on the railway itself—on the tracks or at the edges of the tracks? Will investigations be confined by the boundary fences of the railway? What if investigations need to spread beyond the railways into roads, fields or elsewhere? I assure the Committee that I am not trying to be pedantic, but I can see difficulties. I remember that we had similar discussions—I believe with the same Minister—about changes in motorways. Patrols on the motorway were to be introduced, but the same problem arose of what happens if such a patrol has to go beyond the boundary fence of the motorway. We had a problem with overlap, but it was not of party political dimensions. 
If responsibilities are moved away from the Health and Safety Executive, which has a much more general remit, irrespective of where things happen, I hope that the consultation will consider carefully whether the Bill as drafted will make investigations more difficult rather than simpler. I would be grateful if the Minister responded on that point, although not necessarily now.

Graham Stringer: I did not intend to speak in this debate, but although I strongly support the clause for reasons that I shall come to, I sympathise with the caution that the hon. Gentleman urged in making a direct comparison with how the CAA works.
The CAA is an economic regulator; it sets standards and looks at safety, and it works extraordinarily well. Having been a member of the Transport Committee for many years and having asked why aviation gets safer, I have come to the conclusion that the answer is not the way in which the CAA is set up— ideally, one would not set it up in such a way—but the fact that all the people involved know each other and have worked closely for many years. Safety is deeply imbued in  every part of the CAA's activities. One must be careful in taking the structure of the CAA, which has its own culture, and putting it elsewhere. 
To underline that argument, I point out that the privatised structure of the railways is too fragmented and does not work, but it is exactly comparable to the structure of the aviation industry. Railtrack is like an airport and the competing airlines are like the train operating companies. One can continue with the analogy—it is almost perfect—but whereas aviation works well, the privatised rail system does not work. The hon. Member for Spelthorne is therefore right to say that we should be careful. 
On the other side of the argument, however, the hon. Gentleman is wrong when he says, ''If it ain't broke, don't fix it''. That is good common sense, but the Health and Safety Executive's involvement with the rail industry is broken.

David Wilshire: I do not think that I said ''It ain't broke''; I said ''If it ain't broke''. I did not seek to suggest that there is nothing wrong. I was saying that caution should be applied when considering whether the system was broken. I welcome the chance to have made that clear.

Graham Stringer: I am grateful for that, because if we agree that the system is broken, we can move on fairly quickly.
When the Select Committee took evidence on safety from the various parts of the rail industry, we were shocked to find that the Health and Safety Executive was not communicating with the director of rail safety. He had been given his position following the Cullen inquiry, but he and the HSE were not talking to each other, and the industry was talking to its stakeholders. 
The industry was dissatisfied with its classification as a major hazard industry. That was caused not by relatively minor but expensive gold-plating problems such as not allowing trains to be used if light bulbs were not working, but by other, more serious problems, such as expensive platform extensions being demanded when much cheaper solutions to the problem are clearly available or extension of the train protection warning system that, over 25 years, would save only five lives but which cost £375 million. If that money had been applied to the roads or any other part of the transport system, it could have saved more lives. 
I could go on at length, but I must emphasise that I support the change because the system is broke. The industry has, by and large, shown 100 years of safety improvements. Apart from the obvious blips resulting from major accidents, it is very safe. It is at least 365 times safer than the roads, because as many people are killed on the roads every day as would die in a major rail accident. 
I support the change that is being made, because although the industry is getting safer and has a good safety record, it does not trust the Health and Safety Executive, which does not communicate with it, and it feels that unreasonable costs are being placed upon it. Such change is necessary.

Christopher Chope: The hon. Gentleman brings a lot of knowledge to our debate, based on his Select Committee work. In that context, will he comment on the concern expressed by Brendan Barber of the TUC that finance and safety regulations do not mix?

Graham Stringer: I am not aware of the context of that statement. I do not believe in principle that economic regulation and financial control should be mixed with safety. The CAA is an organisation in which that mixture has been successful, but I urge caution while accepting the necessity for change, because things are and have been poor between the HSE and the rail industry.

Greg Knight: Our differences on this question are ones of degree, and they relate to the speed of progress rather than to matters of principle. My hon. Friend the Member for Spelthorne thought that there should be a longer period before consultation gets under way in order to ensure that every aspect is properly considered. My hon. Friend the Member for Christchurch takes the opposite view; he thinks that consultation should come sooner rather than later. With that divergence of opinion, the Minister may conclude that the Department has it about right.
Safety responsibilities should be undertaken by people who have an expertise in the industry and a deep knowledge of it, and who are in dialogue with key players. To that extent, the hon. Member for Manchester, Blackley was correct in his analysis. The Minister's comments a few moments ago were predictable. That is not a criticism; there should be no difference between the two main political parties on safety. I am therefore reassured by what he had to say and we are all grateful that he said it. It is absolutely necessary for it to be on the record.

Tony McNulty: The exchange that we have just had has been useful and responsible. We are aware that there are concerns about the move, and I share some of the views about caution that have been expressed. We are not about to graft on the aviation model simply because it works in aviation. Railways are quintessentially different from aviation, but the model is worth looking at. We need to get the right balance between economic performance and safety, and that will happen. Safety is much more at the core of all that the railways do than it used to be. The Committee will know that the rail accident investigation branch, which was introduced in the Railways and Transport Safety Act 2003, will come into play next year, and that has to be factored into the mix.
I appreciate much that the hon. Member for Spelthorne said, but I do not share his concern that the rail regulatory judge and jury are in one place. They will certainly not be in one place once this legislation is enacted. There will need to be, however, as there has been until now—Ufton Nervet showed this very clearly—a full understanding between all the parties involved about safety in road and rail transport. I am with him on that. What was the Ufton Nervet tragedy—a road accident that had consequences for the rail sector or a rail safety failure that had consequences on the road? It was clearly the former, so  there will have to be, as there is now, full understanding between those involved in rail safety on the rail side and their counterparts in the Highways Agency, the police and everybody else involved. That understanding prevails now, and it will have to prevail in the new circumstances.

David Wilshire: It might be that the answer to this question is in a part of the Bill that I have not looked at, but can the Minister assure us that somebody will have a long, hard look to ensure that there is no scope for buck passing in cases in which there is a debate about whether something is a rail accident or a road accident? It would be tragic if that were not clear and capable of being sorted out very quickly.

Tony McNulty: The matter is already very clear. That needs to continue and we should not lose sight of it in the context of the changes under the Bill. It was clear in Ufton Nervet, where all authorities, to their credit, worked enormously well and extremely efficiently together. There will always be an interface, however, between various elements, and with safety paramount, we need to take that into account. I am fairly comfortable with the notion that, by the first half of next year, we will have all the flesh on the bone of the management structures.
As the right hon. Member for East Yorkshire (Mr. Knight) so kindly suggested, safety is and will remain paramount, and it will run throughout all that we do in respect of the railways. It underpins all that we seek to achieve in the Bill. That will never be lost from our focus, and I am grateful to the right hon. Gentleman for his comments in that regard. In this one instance—and this one alone—I am delighted to be so blindingly predictable. I commend whatever we are commending to the Committee. 
Question put and agreed to. 
Clause 2 ordered to stand part of the Bill.

Schedule 3 - Transfer of safety functions

David Wilshire: I beg to move amendment No. 20, in schedule 3, page 80, line 10, after 'a', insert 'surface or underground'.
This amendment should not take long to debate. I am anxious to be absolutely clear that ''a transport system'' includes both overground and underground systems, and that we shall not have people arguing that underground systems are not railways.

Tony McNulty: As I said in the previous debate, I can certainly confirm that the underground, tube and metro are railways for the purposes of this provision.
Sitting suspended for a Division in the House.
On resuming— 
The Chairman's attention having been called to the fact that seven Members were not present, he suspended the proceedings. 
Sitting suspended for a Division in the House. 
On resuming—

Tony McNulty: With those assurances, I hope that the hon. Member for Spelthorne will withdraw his amendment.

David Wilshire: I am struggling to remember the answer and the amendment, but it seems sensible to withdraw whatever it was. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

David Wilshire: I beg to move amendment No. 21, in page 80, line 18, leave out 'negative' and insert 'affirmative'.
This amendment will not be disposed of quite so lightly. I tell the Minister at the outset that I am minded to insist that we press it to a Division unless he satisfies us that we would be wrong to do so. Some people may think, ''Oh, there they go again—'may' or 'must'; 'negative' or 'affirmative','' and that we are making nice debating points that do not count for much, but there is, in my judgment, good reason to say that the regulations should be subject to the affirmative resolution procedure, because of the nature of the business with which we are dealing. 
Paragraph 1(4) states: 
 ''The Secretary of State may, by regulations, modify the definition of ''railway safety purposes''.'' 
That is a significant and fundamental point. If we get such things wrong, it could have the most appalling and tragic consequences for lots of people. This matter should be put to the House, because if a tragedy were to happen that could be laid at the door of the regulations modifying this definition, it would not do for colleagues to say, ''It wasn't much to do with us because we were not asked to consider it and vote on it.'' I urge the Minister to give serious thought to whether we should debate this matter under an affirmative resolution procedure rather than a negative resolution procedure and for very sensible reasons, rather than simply for the sake of debating it. This is a safety issue. The consequences could be very serious, and the whole House should be given an easy opportunity to say whether we all approve of making changes to safety on the railway, rather than having to kick up a fuss under the negative resolution procedure if we are unhappy.

Tony McNulty: I in no way traduce the ''may'' or ''must'' arguments or the negative or positive elements of our scrutiny. They are perfectly fair. I might  disagree with them—that is my right—but I do not traduce the notion of them as key elements of the scrutiny process, which are entirely fair.
I would agree with the hon. Member for Spelthorne if the wording of this part of the schedule meant that the Secretary of State could, at any given moment and whenever he fancied, change or modify the definition and sneak it through the House under the negative resolution procedure without a by your leave. There is a statutory duty in the schedule for the Secretary of State to consult the HSC, the ORR and other appropriate bodies before any modification of the definition. That is a very important distinction. There is still scope for the House to pray against such a measure under the negative resolution procedure if it chooses to do so—this is where we get into routine arguments about positive and negative resolution procedure—and to have a debate afterwards. However, given that those most directly involved in safety on the railways must—not may, might, or if they fancy it—by statute consult before any such modification is laid before the House under the negative resolution procedure, many of the points made by the hon. Gentleman are covered, and we reach the stage where, with a degree of comfort, we can have proper scrutiny of any proposed modification to the definition. As I said, I have no concerns about the hon. Gentleman's points about the negative and positive resolution procedures. They are well made, although I disagree with them in this case. The hon. Gentleman's fears are unsubstantiated, given that substantive and statutory duties are imposed on the Secretary of State to consult in full before any modification is laid before the House, and I ask him to withdraw the amendment.

Greg Knight: I understand why the Minister said what he had to say in answer to the amendment, but he is rather missing the point. The level of consultation does not matter. The point made by my hon. Friend the Member for Spelthorne is about parliamentary scrutiny and about Ministers seeking the approval of this House for one of its Committees to make a change or an order, and it should not have to rely on the beady eye of an Opposition Whip to ask his colleagues to pray against a particular matter. The Minister should come to this place for consent. I believe, in any event, that our procedures are in need of a serious overhaul. More and more decisions are being taken by Ministers under delegated legislative powers, and more and more changes are being implemented without there being proper scrutiny. I have long taken the view that members of Standing Committees should be dedicated for a Parliament, because one way in which Ministers can avoid very effective scrutiny is to ensure that only Government Members who do not have an interest in the subject are chosen, so that questions are not asked. I am pleased that that is not entirely the case on this Committee, as we have heard in some excellent interventions from the Government Benches. Despite  the Minister's assurances about consultation, my view is that we make too much use of the negative resolution procedure and I agree with my hon. Friend.

John Thurso: On this one rather rare occasion, I am inclined to support the amendment. There is concern that the safety functions may be conflated with the financial functions, although I do not believe that that will happen. The Government's model is right and I support that principle, but I understand those who have such concerns. Because of that concern, the negative resolution procedure would send the wrong message, whereas the affirmative resolution procedure would allow the House to scrutinise any proposal. That would be the safeguard for those who are worried, which is why I support the amendment.

David Wilshire: I am always pleased to receive support from any quarter and I am not too proud to say that I welcome the support of half of Scotland. My only regret is that only one Liberal Democrat Member is here. If both were here, the hon. Gentleman could vote in favour and the other one could vote against, in true Liberal tradition. Nevertheless, we shall take help wherever we can get it.
I warmed to the suggestions that my right hon. Friend the Member for East Yorkshire made about appointing Standing Committees for a whole Parliament because, as I know from experience, one of the most unpleasant jobs that Whips have is persuading hon. Members that they are keen to volunteer to serve on Standing Committees. Having to do so only once a Parliament would make life so much simpler. 
I am sorry that the Minister wondered whether I thought the Secretary of State would try to sneak regulations through. There are occasions on which I have treated the Minister to comments about sneaking things through and about jackboots—he will remember them. However, I deliberately chose not to go down that route because the issues are too serious to be mired by that sort of debating—they are issues of safety, of life and of death. 
I accept that minor changes can often be usefully made through the negative resolution procedure. Doing so saves time and effort and stops people from preparing paperwork unnecessarily. I accept that and I do not think that there is always an argument for using the affirmative procedure. However, the issues are so important that they ought to be brought forward for parliamentary scrutiny automatically. It should not be enough to leave such matters to consultation. 
I accept what the Minister said about there being no scope to sneak things through and about the statutory requirement to consult. However, consulting Parliament ought to be obligatory as well, rather than leaving it to Parliament to say, ''We'd actually like to discuss this,'' so I am afraid that the Minister has not persuaded me.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived.

David Wilshire: I beg to move amendment No. 22 in page 80, line 32, leave out 'appropriate' and insert 'necessary'.

David Amess: With this it will be convenient to discuss the following amendments: No. 42, in page 80, line 35, leave out paragraph 2.
No. 23, in page 80, line 36, leave out 'appropriate' and insert 'necessary'. 
No. 24, in page 80, line 41, leave out 'appropriate' and insert 'necessary'. 
No. 25, in page 81, line 1, leave out 'appropriate' and insert 'necessary'.

David Wilshire: I am prepared to listen to the Minister before deciding whether to pursue these amendments to the bitter end, because they involve more than a minor point. I have tabled them to question whether it is appropriate to use the word ''appropriate'', if hon. Members will permit me to put it in that way. It seems to me that the word ''necessary'' has a significantly different meaning, and that it raises an issue that can usefully be explored. The issue arises from a point that my hon. Friend the Member for Christchurch made earlier about needing to be careful not to overdo things.
The word ''appropriate'' suggests to me that if the Office of Rail Regulation is to make changes and create duties it may decide ''This would be a good idea, and, if it is going to be done, it is appropriate that it should be done in a particular way.'' However, it should be asking whether it is necessary to take the action in question. There is a great difference between the two terms. Using the term ''appropriate'', there could be a list of things that might be worth doing, without there being any need to decide whether they were necessary; if they were thought appropriate they could be allocated accordingly. 
There would be no test of necessity, and overkill could result—the attitude that certain things should be done just in case. A great long list could be drawn up, which would be going way over the top. If the test of necessity were used, I should not mind if the terms ''appropriate'' and ''necessary'' were both included.  However, some test should be applied of whether action would be sensible—not just whether it was going to be done in the right place.

Greg Knight: I always hesitate to disagree with the Whips, for obvious reasons, and I was delighted to support my hon. Friend the Member for Spelthorne on his previous amendment, but he has not yet convinced me that the Opposition should support amendment No. 22.
I base my conclusions on an example. The change that my hon. Friend wants to make comes under the heading of the ORR's principal railway safety functions, and would affect the duty, under paragraph 2(1)(a) of the schedule, 
''to do such things and make such arrangements as it considers appropriate''— 
my hon. Friend would have the word ''necessary'' there— 
''for the railway safety purposes''. 
The ORR may consider it appropriate, but not necessary, to install security lighting or security fencing at a station or in a car park. It seems to me that ''appropriate'' is indeed the correct word, because safety not only means safety from trains being derailed but also passengers' safety from being mugged or attacked. If they considered safety in its broadest sense, those charged with responsibility under the arrangements in question might well decide that something was appropriate and that they had the money to make an improvement that would make female passengers in particular feel more relaxed about using a late-night train. However, it could not be said by any stretch of the imagination or the language to be necessary to do that work. Unless my hon. Friend has a good answer to the argument,I regret to say that we should not support his amendment. 
I refer the Committee to amendment No. 42, in my name and that of my hon. friend the Member for Christchurch, which seeks to leave out paragraph 2. It is a probing amendment, because I want the Minister to tell the Committee why he feels that one of the duties of the ORR should be to carry out research. I can understand why it might from time to time wish to undertake research into a particular issue. However, this measure does not give the body the power to research as and when it deems it to be appropriate; it goes further than a permissive power and imposes a duty upon it to undertake research. If it is felt that the ORR should have to carry out research, why is there not a similar duty on the Highways Agency? It would help the Committee if the Minister were to say why it should be a duty.

Tony McNulty: As I should have said last time, but refrained because I did not think that it would have persuaded anybody on the Opposition Benches on the last amendment, just as it will not on this one, we have deliberately taken into account the wording and the substantive duties of the principal Act, the Health and Safety at Work, etc. Act 1974. Is it appropriate to use ''appropriate'' rather than ''necessary'' in the context of the amendments before us? We think that it is, because that affords the ORR, as the focal point for  rail safety, a degree of discretion to carry out its duties, rather as the principal Act does for the Health and Safety Executive. We believe that it is necessary for the rail safety regulator to have those elements of discretion in order to carry out its work.
I enjoyed the debate on the modernisation of our scrutiny procedures. At some level, I am with the right hon. Member for East Yorkshire. Standing Committees should be for the duration of a Bill, rather than of a Parliament, where a Bill means Second Reading and Committee stage, right through to the dispatch of all commencement orders. The tail end of the Bill process is increasingly—across parties in Government—the end where the meat of delegated legislation, guidance, regulations and so on is prepared. It might be appropriate if the same people were to sit on the Committees all the way through. That is an interesting point, which we might pursue in other regards. Much of the focus of the supposed modernisation since 1997 has been fatuous and peripheral, to say the least, precisely because it has not dwelt on our main purpose, which is how the Executive and others might scrutinise legislation and account for Government more readily. We have spent most of our time worrying about whether we should start our deliberations at half past 11 or half past 2. However, that is by the by, but I feel all the better for having got it off my chest. 
Let me also say in passing that nobody should be under the illusion that the negative resolution procedure is somehow any less robust or comprehensive than an affirmative one. They are different ways of securing the same degree of scrutiny. I would not necessarily agree with the notion that affirmative is better than negative. 
In amendments Nos. 22, 23, 24 and 25 on ''appropriate'' or ''necessary'', we find it appropriate to use ''appropriate'' because that is what was used in the principal Act, the Health and Safety at Work, etc. Act 1974. It affords that modicum of discretion in legalese that ''necessary'' would not. We feel that there needs to be that element of flexibility. 
On amendment 42, I can half understand where the right hon. Gentleman is coming from, but we think that it is important that the safety regulator has a research duty. The situation is not the same as that of the Highways Agency, as that agency is not an independent regulator but part of the Department for Transport. It carries out its own research, but only as part of the Department's overall research programme. In that case, the specific duty for road research is on the Department and happens to be carried out in part by the Highways Agency. 
To return again to the principal act, the Health and Safety Commission had a duty, not a discretion, to carry out research on safety. We feel that it is more than appropriate that, as the rail safety element is transferred to the ORR, the duty to carry out safety research goes with it. We have not cheated, but instead carried forward the template that has worked extremely well for the best part of 30-odd years from  the Health and Safety at Work, etc. Act 1974 into the framework of rail safety and the focus on it under the ORR. 
I hope that in the context of that 30-year history Opposition Members are persuaded. I freely accept that had I deployed such an argument on the previous issue of positive versus negative resolution procedure and said that it worked 30 years ago and in the principal Act, that would not have moved in the direction of the modernist bravado of the right hon. Gentleman.

John Thurso: I follow the Minister's argument, and it is important that there is a duty to procure research. Is it not the case that a similar duty is laid on the Civil Aviation Authority, which is the model that we are seeking broadly to follow?

Tony McNulty: Very much so. Importantly, in all its paragraphs and sub-paragraphs, the schedule talks about making such arrangements as appropriate. It does not say, ''Please procure research in exactly the same fashion as the CAA does for aviation;'' it simply says, again referring to the parent Act, that it is appropriate that the rail safety element of the ORR has a duty to make arrangements where appropriate for research. That is eminently reasonable. As the hon. Gentleman suggests, it follows the CAA model far more readily than the Highways Agency model, because the second is part of the Department for Transport. On that basis, I ask the hon. Gentleman to withdraw the amendment.

David Wilshire: Before I respond, I should say that if my right hon. Friend the Member for East Yorkshire comes to the next Committee sitting with his arm in a sling, it will not be because of his disagreeing with a Whip but because of some unfortunate accident in which I played no part.
I should also say that the alert student of these matters will have noticed that the official Opposition spokesman is my right hon. Friend, and when he pronounces, he is pronouncing the policy of the next Government, who will be taking over in May. When I pronounce, I do so in my individual capacity, so he is at no risk in disagreeing with me. In fact, he is probably helping me by making some fair points. 
It is interesting that I should respond to my right hon. Friend rather than to the Minister. I listened carefully, and just as I failed to persuade him of the reasonableness of my argument, I am afraid that he failed to persuade me. However, I know when I am beaten—I cannot even gather up friends to help me out. I am certain to lose and on that basis, although I am not persuaded, I beg to ask leave to withdraw this splendid amendment. 
Amendment, by leave, withdrawn.

David Wilshire: I beg to move amendment No. 26, in page 82, line 11, leave out 'may' and insert 'must'.

David Amess: With this it will be convenient to discuss the following amendments: No. 27, in page 82, line 12, leave out from 'paragraph' to end of line 13. 
No. 28, in page 82, line 14, leave out 'at such time' and insert 
'within three months of its completion'.

David Wilshire: Here we go again—replacing ''may'' with ''must''. On this occasion, there is an important point that needs to be explored. The three amendments have to be taken together to achieve what I always feel is important on such occasions. Paragraph 4 seeks to provide that a report is required at the end of an investigation into an accident:
 ''The Office of Rail Regulation may authorise a person to investigate and make a special report on any accident''. 
It goes on to say that the Office of Rail Regulation may publish the report or part of the report 
''as such time . . . as it thinks fit.'' 
If there has been an investigation into a tragic accident, there will be very legitimate public interest and almost certainly direct individual interest to families affected by such an accident. I do not think that it should be left to the discretion of the ORR to decide for itself whether it wants to publish the report; I believe that there should be an obligation for a report into an accident to be placed in the public domain in full. If it is not, one wonders what on earth is going on; if bits are left out, one wonders about what is being covered up; and if it is left to the ORR's discretion to decide when it might get round to publishing it, it could be at any time. 
My three amendments, which commend themselves to me at least, seek to say that the report must be published, that it must be published in full and that it must be published within three months of it being completed. I am not wedded to three months if someone could argue that four months or six months would be more sensible, but the principle of the time limit is important. That is for the benefit of the public so that they know what is going on. I seek a response from a Government who believe in freedom of information. Such a report is a good example of what should be in the public domain as quickly as possible.

Greg Knight: My hon. Friend the Member for Spelthorne will be pleased to know that I have more sympathy with him on this group, especially amendment No. 28, which seeks to insert in line 14 the words
''within three months of its completion'' 
instead of the words ''at such time''. Can the Minister give us any reason why a completed report should not be required to be made public within three months of its completion? The only example that I can think of is that it might be politically embarrassing to a Minister. 
If we allow the current wording to remain in the Bill, a report that is critical of the Secretary of State may remain away from the public gaze until elections are out of the way. One can envisage a scenario in which the Secretary of State has sight of a report that is critical of some act or omission by him or one of his Ministers, and he then asks that the report not be published for a period of time. That is the only  example that I can think of when such a delay might be used. I cannot think of any other scenario in which it would be necessary for a completed report to be held back. I should be interested to hear what the Minister has to say about that, and if he cannot give a reason, I should have thought that the Committee should insist that when a report is completed, it should certainly be published within three months of the date of completion.

Mark Field: It seems odd that the Bill should leave such widespread discretion in the hands of the ORR. I agree entirely with my right hon. Friend the Member for East Yorkshire, and it would be interesting to see whether there is a similar, all-embracing discretion in the hands of other regulators, as far as what may be considered to be politically sensitive reports are concerned.
In precisely the same way as my right hon. Friend mentioned, it seems to me that only political problems, or potential political problems, would delay the issuing of a report for a prolonged period. It is surely in the interests of the rail-going public, passengers and the public at large to ensure that the disclosure of information from an important report that might follow an accident or other incident is brought to public attention at the earliest opportunity. A three-month delay seems long enough for any procedural concerns. 
I wonder whether there is a precedent from the actions of other regulators. For example, if concerns were raised about the financial regulation by the Financial Services Authority, we would have a public report post haste. I disagree with the notion that such a report could be delayed for whatever reason—any long-term delay would seem to have political ramifications. Perhaps the Minister can give us guidance, because he will understand why Opposition Members are concerned that the provision could be misused to grave political advantage.

Tony McNulty: There we are; all this time I have been nice, but now Opposition Members are provoking me. The ORR will be independent. Under this and other legislation, we have no control whatsoever over the timing, publication or contents of any report. Let us get entirely off the table the notion that we are roughly at the stage of democracy that the Ukraine is trying to reach. That is nonsense, and everyone on the Opposition Benches knows that.
The provisions of the schedule are again—I do not wish to repeat myself—exactly those prescribed for the Health and Safety Commission in section 14(2)(a) of the parent Act for this part of the Bill—the Health and Safety at Work, etc. Act 1974. There are circumstances in which parts of reports should be repressed, some parts should be published and in which others should never be in the public domain, certainly not within an ill-defined and arbitrary three-month period. Any number of legal processes may unfold in the wake of a particular incident or accident that would make that entirely inappropriate, but it should be left to the discretion of the regulator when or if certain parts or all of a special report should be forthcoming.
Rather laboriously, I have had to read God knows how many pieces of paper and attend the odd seminar on freedom of information—fun though they are—given that new legislation is coming in January. We are getting to grips with the concept, and I suspect, from my limited knowledge of the FOI provision, that there is nothing that would challenge the circumstance in which the regulator would hold back parts of a report because of criminal or civil proceedings or because a special report was part of a wider conflagration or accident. If the ORR produces a special report covering specifically rail safety in an accident or incident with wider implications in terms of the transport modes involved—for example, the Ufton Nervet road-rail accident, or an incident between aviation, rail or road transport—it would be hugely inappropriate if the rail safety report was published, and it preceded or pre-empted wider-reaching safety reports. 
There is a whole range of reasons to hold back parts of a report. Equally, it is appropriate for the regulator to determine when such a report should be published publicly or otherwise. The notion of political suppression is simply nonsense. The regulator will be independent, and we will have no control over him. In that context, the practical flexibility afforded by this part of the schedule is appropriate. It is not about the suppression of information. It is not about doing a favour for a Minister or a Secretary of State. Within the context of the parent Act—the Health and Safety at Work, etc. Act 1974—it allows those carrying out the investigations that precede a special report to get on with their job of determining how to take things forward in the important context of the failure of rail safety measures. 
In that context—and apart from what I said about cross-cutting inquiries that cover more than rail safety and those in which criminal or civil proceedings are in play, and now that we have the political nonsense out of the way—I can think of no other capricious or malevolent reason why the ORR would choose not to publish most if not all its reports. However, it requires a degree of flexibility, which is why I ask for the amendment to be withdrawn.

Greg Knight: The amendments are the children of my hon. Friend the Member for Spelthorne. It is a matter for him what should happen, but I hope that, on reflection, he will press amendment No. 28 to a Division.
If the Minister ever decides to leave politics to pursue an alternative career, he should consider the stage. That was the best smoke screen that I have seen for some time. He said that Ministers would have no control over the ORR. That is correct, but denying that Ministers would have influence is another matter. We all know that the Secretary of State has to work closely with the industry, and I can well see a scenario developing in which, if something politically embarrassing was mentioned in a report, the Secretary of State might seek to use his influence—not his control—to suppress a report.
In arguing that the Committee should reject the amendment, the Minister said that parts of a report might be sensitive and that the ORR would not wish to publish them. We should pause and look at page 82 of the Bill, and at paragraph 4 of the schedule. The previous paragraph still gives the ORR the power to withhold parts of a report if they are deemed to be inappropriate for publication. In such cases, we seek only to put a duty on the ORR to ensure publication within three months of the completion of the report. That is reasonable; it is fair. It is in accord with the freedom of information legislation of which the Government are so fond. I therefore commend amendment No. 28 to the Committee.

David Wilshire: I took the friendly suggestion of our official spokesman as an instruction to press amendment No. 28 to a Division; I shall be delighted to do so in due course, Mr. Amess, if you allow it.
I have to enter a caveat. I listened to what the Minister said, but I deliberately did not go down the political and skulduggery route because I felt that if I were to upset him by raising certain issues, they would get completely lost in the bluster of righteous indignation about us daring to suggest that he was a politician. 
I do not know whether I read too much into what the Minister said, but he said more than once that he felt that there was a need for flexibility because the ORR might sensibly wish to hold something back. He could have said ''withhold'', a definite and for ever state of play. I listened carefully, and he did say that it would be possible for something in a report to prejudice subsequent court proceedings. I can buy into his reasons for saying that, in some circumstances, three months would be inappropriate. However, that is not a reason for a time limit of some sort not being included. 
The Minister may prefer to come back on Report with an amendment saying that a report should be published within three months of its completion unless—and then provide some reasoning as to why it could be held back for a period. I would welcome such an amendment if it said that reasons must be given when that power to hold back is used, so that their sensibleness can be tested, and that the time limit still applies when the objection to immediate publication has gone away. The time limit would therefore be three months unless there were to be court proceedings and publication would prejudice a trial, in which case one of the ''unless'' reasons would be triggered and publication would take place three months from the end of the court case. There should still be a requirement to publish; that is what I am after. I have not heard any reason why, when all other reasons and difficulties are out of the way, something should be withheld for ever. I am persuaded that there is an argument for such publications to be held back, but not for ever.

John Thurso: Has the hon. Gentleman considered the security aspect? This may be an unlikely scenario, but if there were a rail accident that needed to be  investigated, any such report may involve security matters, and may contain paragraphs that should not be made public because they would give comfort or information to a potential terrorist.

David Wilshire: I understand the hon. Gentleman's point, but it does not undermine the general principle. I have accepted that the Minister came up with one circumstance in which it may be sensible to say that a report should be published within a certain amount of time unless something was about to happen, and I am prepared to discuss with the hon. Gentleman whether terrorism requires some references as well, but I am not sure whether that should be the case for ever, because it could well be that the potential terrorist threat that gave rise to a report being withheld may not appertain later. If the terrorist threat goes away, the matter should be in the public domain.
I am only too willing to listen to people's suggestions of circumstances in which 28 days would not be a suitable time scale, but I have not yet heard one that says that the general principle of requiring publication within a fixed time, but with exceptions, is not the right way to go, rather than there being so much flexibility that things can be withheld on a whim. On that basis, I wish to press amendment No. 28, at least, to a Division.

David Amess: Will the hon. Gentleman clarify that last remark? Does he seek leave to withdraw amendment No. 26?

David Wilshire: I have been instructed to press amendment No. 28, but not amendments Nos. 26 and 27, so if it helps with progress, I will willingly withdraw amendment No. 26, provided that that does not lose me the right to press amendment No. 28. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Amendment proposed: No. 28, in page 82, line 14, leave out 'at such time' and insert 
'within three months of its completion'.—[Mr. Wilshire.] 
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 12.

Question accordingly negatived. 
Question proposed, That this schedule be the third schedule to the Bill.

Christopher Chope: May I raise a question about paragraph 12 of the schedule, which makes provision for the Secretary of State to make regulations for a levy to be paid to the ORR in respect of railway safety activities that it undertakes? That replicates a power that was given under the Railways and Transport Safety Act 2003 in relation to the Health and Safety Executive, but that power has not yet been implemented. Will the Minister say how he sees the levy operating? What will the level be and will there be any constraints on the ability of the ORR to increase its costs in the knowledge that those costs could be passed on to the railway industry?
In that context, it is relevant to recall our short debate about research. If all the research is funded by the railway industry through a levy, will a ceiling be put on it? Will the end result be greater costs being borne by railway passengers rather than taxpayers as a whole, which is how the Health and Safety Executive has traditionally been funded?

Tony McNulty: I shall respond in the overall context of the schedule, on which there has been a useful and substantive debate. Rather like the previous two schedules, schedule 3 is important and faces two ways. In one sense the schedule affords the move of the rail safety elements that were previously with the Health and Safety Executive to the ORR, but the legislative consequence—as I am sure hon. Members will know, because they have read the schedule in full—is that the process is also reversed. The schedule has to take out of legislation the assorted elements that flow from moving such matters to the ORR. That is slightly clumsy, which is why the schedule is so techy and long, but we must ensure that the elements of law relating to HSE powers are taken out and given to the ORR.
On the specifics of the levy, the root of the power, rather like the entire schedule, is the Health and Safety at Work, etc. Act 1974. It is important to work with the ORR in the range of ongoing discussions that are part of the transfer, many of which are non-legislative, as I have said. That is necessary to ensure that the levy is set at an appropriate level and is limited, that we do not get regulatory dirigisme, as I suspect the hon. Gentleman would say, and that there is an open check. 
It is important that the ORR should be properly funded for the rail safety element, much of which simply follows on from the position under the HSE. As I have already said in many instances and will no doubt say again in our Committee, that is a feature of the transition period over the coming years as matters unfold, some while we are still with the Bill, some beyond it. As I said, I will endeavour to keep the Committee up to date.

Christopher Chope: Can the Minister say whether he expects the HSE to be able to impose a levy under the Railways and Transport Safety Act 2003 while it retains the powers of rail regulation? When does he intend to implement those provisions?

Tony McNulty: With the proviso that I am no lawyer—I am grateful not to be one—I suppose that the strict answer is yes. While the 1974 Act is alive and until we reach the stage at which the Bill prevails in rail  safety rather than the HSWA, the technical answer is yes. Practically, however, I think that it is unlikely that what prevails now will prevail and that the provisions of the 1974 Act will be called on instead of those that are being reproduced.
As I have said on other elements, we are trying to get to a stage at which a simpler and more straightforward network of organisations runs the railways, but we cannot afford a huge, mushy, messy and ultimately dysfunctional transition to that, and certainly not in the context of safety on the railways. The ongoing negotiations and discussions are about trying to ensure that there is the smoothest of transitions from the SRA to the post-SRA world, from a world in which rail safety lies with the HSE to one in which it lies with the ORR. In answer to the specific point, I cannot see any circumstance in which the intention on the part of the HSE would be to set such a levy, but we need to get the transition right in this element of the Bill as well as in many others.

Christopher Chope: Am I not correct in my understanding that the power to raise funds from a levy, which is given in the Railways and Transport Safety Act 2003, has not yet been introduced by the Government? The Government do not yet allow the HSE to exercise that power. I am asking whether they intend to allow the HSE to exercise the power while it continues to enjoy responsibilities in this area.

Tony McNulty: Again, the answer is that whatever intention there may be, that is unlikely to happen in the context of schedule 3 and the transition of the rail safety focus from the HSE to the ORR. I have made that perfectly plain and I do not think that anything the hon. Gentleman has said challenges it.
Question put and agreed to. 
Schedule 3 agreed to.

Clause 3 - General duties under s. 4 of the 1993 Act

The Chairman: The amendments on the amendment paper appear to have been printed out of order. We now move to amendment No. 29.

Greg Knight: I beg to move amendment No. 29, in page 3, line 3, at end insert
'for both passengers and freight customers.'.

David Amess: With this it will be convenient to discuss the following amendments:No. 7, in page 3, line 4, at end insert
'both passenger and rail freight'. 
No. 30, in page 3, line 4, at end insert 'both passengers and freight.'. 
No. 31, in page 3, line 4, after subsection (1) insert 
 '(1A) The Secretary of State shall have a duty to promote the use of the railway network for the carriage of passengers and goods, to secure the development of the network, and to contribute to the development of an integrated system of transport of passengers and goods.'.
No. 6, in page 3, line 34, at end insert 
 '(7A) After subsection (4) insert— 
 ''(4B) The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part, to ensure that local and regional authorities in England, and the devolved administrations of Scotland and Wales, implement where applicable rail freight infrastructure developments. 
 (4C) The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part, to ensure that Network Rail ensure improvements in railway service performance for freight operating companies and their customers as well as rail passengers and train operating companies.''.'.

Greg Knight: In addition to moving amendment No. 29, I shall also speak to amendments Nos. 30 and 31, which are in my name and that of my hon. Friend the Member for Christchurch.
May I start these deliberations by making a plea through you, Mr. Amess, that before we meet on Thursday someone winds the clock that I am facing? As I look at the sea of Labour Members and then up at the clock, I keep thinking subconsciously that time is standing still. It would be helpful to see the hour that we are at, rather than 9.20 throughout the day. 
There is a duty on the Government under the Railways Act 1993 
''to promote the use of the railway network . . . for the carriage of passengers and goods''. 
That duty appears to remain in place despite the changes being brought about by the Bill. Retention of the duty is fundamental to the ongoing use of the network not only by passengers but particularly by freight. 
The duty was expanded in the Transport Act 2000, which set out the purposes of the Strategic Rail Authority. Its duties were 
''to promote the use of the railway network for the carriage of passengers and goods . . . to secure the development of the railway network, and . . . to contribute to the development of an integrated system of transport of passengers and goods.'' 
Those provisions of the 2000 Act are repealed by the Bill, but our view is that if they were necessary in 2000, they are necessary now and should be reinstated as duties of the Secretary of State instead of duties of the SRA, which we have agreed to abolish. 
Under the Bill, as I read it, the only duty on the Secretary of State is 
''to promote improvements in railway service performance'' 
''otherwise to protect the interests of users of railway services''. 
That is useful, but we want the clause to contain the wider and more comprehensive duty. That is the reason for amendment No. 31, which makes it quite clear that the duty on the Secretary of State applies not only to passengers but to freight. That is why amendment No. 29 refers to promoting improvements in the railway service performance 
''for both passengers and freight customers''. 
That is important, because since the role of Network Rail is set to increase, and some argue that its current attitude to freight is not always positive, we believe  that it is essential that the agreement between the Secretary of State and Network Rail should include the above duties. 
I hope that the Minister will either support the amendments or tell us that, despite what appears to be a lack of a duty towards freight customers, these issues will be part of the Secretary of State's duty, which he will pursue with vigour.

John Thurso: To all intents and purposes, amendment No. 7 is the same as amendment No. 29, although I have decided that it is slightly defective in that it does not contain the word ''for''. If the matter were pressed to a vote, I would support amendment No. 29 and let my amendment lapse.
I have some difficulty in coming to terms with the duty, which I agree is important, largely because one has to read two Acts of Parliament and the Bill together. I have done that, and I am not sure that I have understood the matter, so with your indulgence, Mr. Amess, I shall examine these points in detail and ask the Minister to tell me whether I have got them right. 
The relevant part of the 1993 Act is subsections (1), (2), (3) and (4) of section 4. Section 4(1)(b) gives the Secretary of State a duty 
''to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that he considers economically practicable''. 
However, the Transport Act 2000, which created the SRA, states in section 224(2): 
''for ''Secretary of State and the Regulator shall each'' substitute ''Regulator shall''''. 
The same substitution is made in all the subsections of the 1993 Act to which I have referred. The effect is that all the duties referred to in section 4(1) of the 1993 Act, which begins with 
 ''The Secretary of State and the Regulator shall'', 
have become simply duties of the regulator, through the phrase ''The Regulator shall''. So we have removed the Secretary of State from all those duties and we have only the regulator. 
Perhaps the Committee can understand why I was beginning to get a little confused at this point. Section 224(5) of the 2000 Act, however, states: 
 ''After that subsection insert— 
 '(3A) Subsections (1) to (3) above shall have effect in relation to the Secretary of State as in relation to the Regulator'''. 
So the regulator seems to have come back again. Subsection (5) continues: 
''except that in their application to the Secretary of State— 
(a) paragraph (za) of subsection (1) above shall be disregarded; and 
(b) the references in each of the subsections to the functions transferred or assigned to the Secretary of State under or by virtue of this Part include only the functions transferred or assigned to him under or by virtue of sections 6 to 22 and 37 to 50 below.'' 
Of course, that takes us back to the 1993 Act, in which sections 6 to 22 refer to licensing and access agreements, and sections 37 to 50 refer to closures and experimental railways.
I am not sure, but I think that the duty that the 1993 Act imposed on the Secretary of State in regard to the railways, which was removed by the 2000 Act and placed on the SRA, has now been removed entirely and is not being replaced. My amendment and those of the right hon. Member for East Yorkshire seek merely to put back into the Bill the duty that the Secretary of State had after 1993 but before 2000 and the introduction of the SRA. If the SRA is created and given a duty, it follows that removing the SRA means that the duty should be given back whence it came—the Secretary of State. 
The matter is important not only for passengers, but for freight. Given the time that it takes to put projects in place, whether they are for infrastructure in terms of road, rail or other links, a time is coming quite quickly down the track, if I can put it that way, when we will run out of capacity on both the railways and the roads. If we do not build roads and we cannot build sufficient roads to meet the requirement for capacity for freight, we will need rail. If we are running out of such capacity, we will have a further problem. If the duty is not imposed on the Secretary of State—this point is allied with my earlier comments about strategy—in about 2016 we may find ourselves in considerable difficulty. That is why it is so important that the duty be reinstated and imposed on the Secretary of State.

Tony McNulty: I do not think that anyone would dispute that the success of freight over recent years should continue, that freight is very important or that our rail network is and should be utilised for the conveyance of goods as well as passengers. No one would dispute that.
For the first time in our deliberations, the hon. Member for Caithness, Sutherland and Easter Ross has totally confused me, if not himself. As I understood it, the element of duty towards freight remains. That is certainly the case for the ORR. I also understand that if the SRA goes, the broad duties that are upon the Secretary of State remain, as was said earlier. Given that the duties that were discharged towards the SRA are no longer discharged towards it, they must, by definition, return whence they came—the Department for Transport. Whether we need that to be explicitly stated in the Bill is a moot point, as is whether the most appropriate place to put such provision is a schedule about the ORR. 
No one would dispute—this is why I am sympathetic to the thrust of the amendments—that rail freight is an important dimension to the rail network. It is a growing and competitive industry, and it is better placed than central Government to know and plan its own developments. Once the SRA and its strategic focus are taken away, I am not sure whether simply broader duties should be back at the centre in terms of freight; those duties are there by definition in the absence of the SRA. However, in the first instance, the freight sector working with central Government is best placed to determine what it needs and in what context. 
Equally important, but not for deliberation here, is access to pathways and the issue the hon. Member for Caithness, Sutherland and Easter Ross raised in  speaking about the conflict in utilisation and capacity between freight and passengers. I know that a good deal of work is being done on that factor across the piece, particularly in the context of utilising inter-city lines for freight and using new capacity for freight. That is always a balance. We feel that there has been no diminution in the Government's commitment to rail freight. Chasing around little phrases that were there and are not there any more because the SRA is to go does not diminish central Government's real duties and our responsibility to recognise the importance of freight in the absence of the SRA and its duties in that regard. With that assurance, I ask that the amendments be withdrawn.

Greg Knight: I am grateful for the constructive way in which the Minister has commented on the amendments. If I understand him correctly, he does not think that they are necessary, but he can see why we were concerned. Will he reflect further on the points that have been made later in the Committee's deliberations, and tell us later what his conclusion is? This is an important matter, and because he indicated that he has not ruled out including the proposals in the Bill, we should reflect on it once we have heard his ultimate conclusion and perhaps return to it on Report. On the basis that he does not have a closed mind on the issue and might be prepared to reflect further, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

John Thurso: I beg to move amendment No. 2, in clause 3, page 3, line 4, at end insert—
 '(3A) In subsection (1)(b) (duty of the ORR to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that [it] considers economically practicable) at end add ''and environmentally sustainable''.'. 
This is something of a probing amendment. It is an attempt to find out more from the Government about their views of the duties of the Office of Rail Regulation. On Second Reading, I mentioned that I was in favour of the way in which the Government were transferring safety responsibilities, but I wondered why the ORR did not have duties with regard to the environment similar to those held by the Civil Aviation Authority. I do not pretend that the schedule is the best place for such provision, and somewhere else in the Bill may be more appropriate. I shall therefore be grateful if the Minister does not tell me that the amendment is defective, as mine usually are, but addresses himself, if he will be kind enough to do so, to the substance of the argument. 
The point is that in the railway industry, the consequences for the environment, and what we are seeking to do through our environmental policies—matters on which there is a degree of agreement between the Government and my party—are not made as clear as they might be. Let us consider, for example, the question of specifying new rolling stock. There is nothing in the specification of rolling stock that would require the Secretary of State, the ORR, Network  Rail, the train operating companies or the rolling stock companies to consider the fuel efficiency of the locomotives or the train set. 
It is interesting to note that while fast trains in France and other countries are becoming more fuel efficient per passenger kilometre, trains in this country are, if anything, becoming slightly less efficient. That reason why is that we have put other matters at the top of the list of specifications. I am not saying that they should not be there, but they are there to the exclusion of the environment. They include safety, disabled access and a range of other issues. We are decreasing the numbers of passengers on the trains, while increasing the weight, requiring, therefore, more engine power to deliver the speed. 
Until such time as we get things such as hydrogen fuel cell technology—an interesting development on which I am delighted to see research being done—it would be useful if we could put a duty on to the ORR At least the importance of ensuring fuel efficiency would then be given the same degree of commitment as it is by car manufacturers on our roads, in aviation and elsewhere.

Greg Knight: Is the hon. Gentleman not concerned that one of the side effects of his amendment, were he to pursue it, might be to deter, discourage or even prevent heritage rail services from taking place on the main line? I am thinking in particular of those services that are fuelled by steam engines.

John Thurso: I do not believe that that would be the case; it is certainly not the intention. On the basis that we are debating the principle, I would say that any amendment made to the Bill would not include heritage railways within its scope. What I am looking to do is, in effect, ensure that within the complex of bodies that will be responsible for the railways, there is someone somewhere who has regard to fuel efficiency.

Graham Stringer: The hon. Gentleman makes an interesting point, exposing the dilemmas in building trains with access for the disabled. That is one of the reasons why trains are heavier but are carrying fewer passengers. I am interested in what the Liberal Democrats' position is on the balance between fuel efficiency and access for disabled people.

John Thurso: The hon. Gentleman raises an important and difficult point. We are all in favour, in principle, of increasing disabled access. I have constituents who are disabled whom I have sought to help. In particular, I have a constituent who lives in the village of Helmsdale, which is on the east coast, where the northbound train is not accessible because his disabled electric chair cannot get across the railway. There is no crossing, so he cannot get on to the train. ScotRail therefore agreed—and it was extremely good of it—to ensure that when trains were going in the direction that does not have access, they would go forward out of the station then reverse into it on the other side. They would take my constituent on board, pull out of the station going the wrong way and then  come back through the station going the other way. Clearly, there is a cost implication for ScotRail of running that service. It is a particular case in a very small community, but given the number of times that my constituent wishes to use the train—only a relatively small number of times in a year—that might be the right solution. If there were a greater demand or if it were a bigger city, putting in more permanent access might be right approach.
My point with this amendment is that there is often a trade-off, and certain arrangements quite rightly have extremely good access for disabled people. However, there is currently no consideration required in any part of the system for environmental issues. I therefore ask that such issues be given consideration within the mix of safety and disabled access, all of which are important criteria.

Tony McNulty: The hon. Member for Caithness, Sutherland and Easter Ross makes a fair point about rolling stock. He will fully accept that it is not a legislative issue, but we are aware that rolling stock procurement has not always delivered the best solutions in cost, technical or environmental terms. We need to look at issues such as increased standardisation, moving away from the over-complexity of energy efficiency and whole-life costs and see how they can be better reflected in future procurements. As I said on Second Reading, we are exploring all those elements with the ROSCOs and the wider industry. As my hon. Friend the Member for Manchester, Blackley suggested, harsher issues exist on which it will be necessary to obtain a balance between various perspectives.
I happily assure the hon. Gentleman that his amendment is not defective—it is duplicative. Referring back to the 1993 Act, we see that all the provisions that he is concerned about, in fact, remain with respect to the Office of Rail Regulation. The ORR will be required to exercise its function in a manner that it considers best calculated to contribute to the achievement of sustainable development. It is, under clause 4(3)(b) of the Act, required, in exercising its functions, 
''to have regard to the effect on the environment of activities connected with the provision of railway services.'' 
Sustainable development, sustainability and the environmental dimension are already in the body of the legislation affecting the ORR, and will remain so under the Bill. I am happy to say this time—I do not promise it is a precedent for the duration of our deliberations, when the hon. Gentleman is not at family weddings—that the amendment is not defective. It is duplicative and unnecessary, and I ask him to withdraw it.

John Thurso: I am extremely grateful to the Minister for putting on the record the Government's commitment to the environment in the context of the effect on it of activities connected with the provision of railway services. That was precisely what I had hoped might happen. On those grounds, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

John Thurso: I beg to move amendment No. 1, in clause 3, page 3, line 34, at end insert—
 '(7A) After subsection (4) insert— 
 ''(4A) The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part, to promote the renewal of franchise agreements to incumbent companies which have met the terms of their previous franchise agreement.''.'. 
The amendment would place on the Secretary of State, in exercising his functions with regard to the renewal of franchises, a duty to have regard to those incumbent companies that had met the terms of their previous franchise agreements. The reason for that is to increase stability. I think that it is commonly agreed that following privatisation, the railways have tended to operate in a way that has not been wholly successful, and one reason is that privatisation led to the fragmentation of the railways, and, sometimes, to competition where it has not been entirely necessary. 
A factor in perhaps securing better value from the railways for the public purse and passengers might be longer franchises, and rewards for franchise companies that fulfil their objectives. A current example is provided by the east coast main line and GNER. The company started with some great advantages, including a line in reasonably good order and some of the more modern rolling stock. However, to give credit where it is due, it added to that a quality of service that is a fine exemplar, from which several other companies might learn. I know that hon. Members of all parties have used GNER regularly and find it both comfortable and normally reliable. Those responsible for re-letting the franchise should be obliged to take that into account. 
I suppose that one might unkindly call my amendment the GNER amendment, but I want to draw attention to the fact that some companies—there are others besides GNER—have done a very good job for their passengers. Those companies that have done a good job for their passengers should be entitled to a small form of comfort, and have their efforts recognised and taken into account when franchises are re-let.

Tony McNulty: I shall not unkindly characterise the amendment as a GNER amendment, or as any other type of amendment. Equally, and for obvious reasons, I shall refrain from commenting on the value and virtues or otherwise of particular franchisees.
I understand the broad the sentiments behind the amendment, but I fear that it will not do what the hon. Gentleman seeks. That is not because it is defective or duplicative, but—I hate to mention the European Union at 25 minutes past five o'clock on a Tuesday evening, as it will create excitement on the Opposition Benches—because I suspect that it will fall foul of EU procurement law. 
It is not practical for a number of reasons. We said in the White Paper in July that we are minded to give more regard to performance. The White Paper said that train company bids
''will be judged not only on cost, but on relevant past performance, their commitments to improve train and crew liability and their operational viability.'' 
I cannot accept the amendment because of its wording. It depends on an effective, efficient and useful set of franchises coming to term; the achievement and performance of the incumbent will then mean something. In the context of any number of the franchises let after privatisation, the targets were not particularly strenuous, to say the very least. Incumbency and successfully achieving a franchise is of no particular merit. The amendment would also disadvantage bidders that have run successful operations elsewhere. It is only fair if we are taking past performance into account that it should not be done on one franchise alone but on the past performance of the company itself. The amendment  would also—this is the EU procurement bit—unnecessarily prevent new entrants from coming into the market, with all the associated fears of costs, market efficiency and so on that would be involved. 
We made a huge commitment in the White Paper to get to a stage on franchises so that the number, the nature and the substance of each would be far more rigorous than they have been thus far. Nevertheless, however good we are on that, it is not enough to judge the record of the incumbent in pursuing the franchise as a reason to preclude new competition or to disadvantage newcomers or other bidders to the advantage of the incumbent. That is not entirely fair. Although I understand the sentiments behind the amendment, I ask the hon. Gentleman to withdraw it. 
Debate adjourned.—[Gillian Merron.] 
Adjourned accordingly at twenty-eight minutes past Five o'clock till Thursday 16 December at twenty-five minutes past Nine o'clock.